National Defence Committee on March 4th, 2013

[The Chair, Conservative, James Bezan]

Okay, the committee would adjourn by the adoption of a motion to that effect, per chapter 20 of O'Brien and Bosc.

(Motion negatived: nays 6; yeas 5 [See Minutes of Proceedings])

Okay, so we're not adjourned.

We're on government amendment 2 to clause 75.

Madam Moore, you were saying that you were moving another subamendment by adding section 100. Do you have that in writing?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Yes, we have it in writing. We would like to add section 100 to the list of provisions. I am going to wait until people have a copy before making my comments.

[The Chair, Conservative, James Bezan]

You have the floor.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

There are two questions regarding section 100. First, it refers to helping set someone free from prison, whether negligently or wilfully. There is the idea that it may be done negligently. For example, someone could be extremely tired or have improperly closed the lock and would be charged under this section.

Now the other aspect where I do not understand the logic—

[Some voices]

Oh, oh!

[The Chair, Conservative, James Bezan]

Order, order. We're trying to hear debate here.

Okay, Madam Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

There is another aspect whose logic I do not understand. Section 101 is included in the Conservative amendment. Someone who escapes from prison on his own will not attract a criminal record. However, when someone helps another person, out of negligence by poorly closing a lock, for example, even if that is not really done wilfully, whether the individual has acted too quickly or because he was fatigued, he may attract a criminal record. I do not understand why a person who escapes falls within the amendment, whereas a person who has helped another individual, either negligently or wilfully, is not. I do not consider that logical. I would like members of the government party to explain that logic to me because I do not understand it.

[The Chair, Conservative, James Bezan]

Colonel Gibson, do you want to reply to that?

[Col Michael R. Gibson]

Mr. Chair, just to explain technically why that particular offence isn't in the list, Parliament, in creating the offence under section 100, provided that the person who committed it would be liable to imprisonment for seven years. Once again, that goes back to the objective gravity of the offence criterion.

I should just point out, in case members are not aware, that this scheme is meant to exclude minor offences. “Serious offence” is a defined term in section 2 of the act. It provides for “an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more”. So in the terms of the NDA itself, by definition section 100 deals with a serious offence.

Thank you, Mr. Chair.

[The Chair, Conservative, James Bezan]

I've got Mr. Harris and Mr. Alexander.

[Jack Harris, NDP, St. John's East, NL]

Mr. Chair, I'm dealing here with a section of the code which, as my colleague has pointed out, we are talking about whether or not a person first of all is in lawful custody. Sections 101 and 102 provide for someone escaping lawful custody, somebody who was in lawful custody who actually takes off. It's not someone who's AWOL and doesn't show up after a night on the town, but someone who is in lawful custody as a result of being arrested by military police, someone who has committed any number of offences and otherwise ought not to be in custody, someone who could be a danger to the public, but escapes from that and is committing an offence. That person somehow or other is treated more leniently, at least in connection with a criminal offence, than someone who actually allows that person to escape, or doesn't lock the door properly, or somehow fails in their duty as a result of which the person is actually gone.

We do have, I guess, in the argument or scheme presented by the Judge Advocate General some theoretical notion that the particular offence may be in one category. But it's pretty clear looking at the section itself, aside from the maximum penalty, that setting free without authority or allowing or assisting the escape can actually be something that's not worthy of significant penalty. It's pretty clear, once again, using the chapter that we put forward, chapter 104, which lists the scale of punishments, that imprisonment for any number of charges lesser than imprisonment for two years or more could result in a sentence for someone charged under section 100.

The provision here, if you read down through section 100, it talks about every person who “without authority sets free or authorizes or otherwise facilitates the setting free of any person in custody, negligently or wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard or keep in custody”—so somebody who is guarding that is not doing a proper job—“or assists any person in escaping or in attempting to escape...”. Surely I don't know how they could be treated as offences for which the punishment they might receive is greater than that for the person who is escaping.

We do recognize that some attempt is being made here to remove the consequence of a criminal offence on individuals who are charged with specific offences, but how we can have a scheme which has two things in place, one, a particular offence, and two, the severity of the punishment, well, surely the severity of the punishment itself determines whether or not something is so serious. If someone is going to lose their rank in the service, someone is going to be dismissed from the service, someone is going to be held in detention for....

If you let somebody out who shouldn't be out and they do something horrible, that's likely to end up with someone being treated very significantly by a tribunal, whether it's a court martial or a service tribunal in the form of a commanding officer. You let this guy out and he went and did something notorious. That's going to result in some significant penalty. People for whom the consequences are serious are going to get serious punishments. They are not going to be considered in the category that the scheme of the act has created.

We have listed here a severe reprimand, a reprimand, a fine, or a minor punishment. These might apply to somebody who mistakenly allows someone to escape. Maybe he didn't have proper authorization. Maybe the person who was held in custody was simply confined to barracks or was in a car on his way somewhere and he thought he was allowed to go. There could be any number of ways in which someone could negligently allow someone to escape without doing anything that would get them more than a minor punishment. Maybe the person wasn't fully informed or was passed on to somebody else. One can easily come up with circumstances where somebody's charged with an offence and his degree of blameworthiness is rather minor. As a result of this rather minor blameworthiness for what is a service offence, a person could end up with a criminal record. What we're trying to do is ensure that fewer offences attract a criminal record, and we're trying to do it in such a way that we reach the most people possible within a reasonable scheme.

I don't think that this is the only provision. There are other amendments to clause 75 that we'll be discussing, but right here in the scheme proposed by the government in clause 75, as amended by G-2, we're listing offences that could be a problem. This could be true regardless of the mode of trial, whether it involves a court martial or not. You could have a court martial, or you could have a matter going before the commanding officer. But if you were on this list and attracted a minor punishment, you wouldn't get a criminal record.

We haven't come up with the whole list. I could go through the list of all of the offences under the National Defence Act that are considered service offences in that they're related to and directed at service. We haven't listed every single one of them. We're not certain that every single one of them is appropriate for this list, because some of them are quite serious.

You'll see when we get to it sometime later on our suggestion that any offence that's tried by summary conviction or trial, we think that the proper solution to the circumstances here is that those offences would not attract a criminal record for the reasons that have been argued strongly before this committee and in the House and by significant, experienced legal counsel and academics and, in one case, a former judge. We have the testimony and submission from Justice LeSage in relation to that as well.

We have to understand that we're here trying, in our different ways—ours with our own amendment that we'll get to later, and the government with this one—to expand the number of offences that won't attract a criminal record. We think that the arguments that are being presented here by my colleague Ms. Moore are quite compelling, as she has done in the argument on the malingering case, and as she has done in the argument on the disobedience of a lawful command.

[The Chair, Conservative, James Bezan]

Okay, Mr. Alexander.

Oh, you're not done.

[Jack Harris, NDP, St. John's East, NL]

I was just in mid-sentence, sir. I had to get out the glass of water to be able to continue with my voice.

[The Chair, Conservative, James Bezan]

Should I order some supper?

[Jack Harris, NDP, St. John's East, NL]

I have a lot to say. I think maybe supper might be in order, sir. It seems that without any notice or consideration of anybody's schedule, the government has decided that we're going to be here all night, and if that's the case, we may as well settle in.

[The Chair, Conservative, James Bezan]

Okay, we have one clause to go. Let's keep going and let's be relevant and have no repetition. I do have other people on the speaking order who want in, Mr. Harris.

Mr. Alexander and Monsieur Larose and then maybe Madam Moore.

[Jack Harris, NDP, St. John's East, NL]

I can get back again, maybe, but just to conclude for now, on the arguments that are being made here in relation to this, we're not talking about something that is so serious and so egregious that it ought to attract a criminal record. In this scheme, and I think this is the point here, this is a particular way of looking at it. It has nothing to do with our other argument about mode of trial, whether we're going by courts martial or not, but it has to do with whether or not it's so severe as to require that there be.... You know, when we look at a criminal record, we're talking about do we have a circumstance where the public, i.e., employers, whether it be people who are going to hire somebody to do a job, whether it's crossing the border to the United States, whether some consequence of having a charge.... You know, when you look at it on the surface, assisting someone escaping sounds pretty terrible. It's like jailbreak, the guy who in the cowboy movies attaches a rope to the doors of the jail and drives off on his horse and hauls the door of the jail off.

[The Chair, Conservative, James Bezan]

You don't have a horse.

[Jack Harris, NDP, St. John's East, NL]

I don't have a horse, but I have a pony and it's a pretty strong pony. They're tough ponies, these Newfoundland ponies, but I can't ride them.

We're talking about escaping custody, meaning breaking out of jail, jailbreak. This is the image. And you can imagine yourself as a United States border guard and Mr. Chisu comes to the border and they check him out and find out that he has a record for helping someone escape. What do you think? Do you think Mr. Chisu would have great luck getting into the United States with that kind of thing on his record? Frankly, I think he would, and I think he would because it sounds pretty terrible, that you're assisting someone escaping, setting someone free without authority, allowing or assisting escape. That sounds like something that might be taken pretty seriously at a border. What we're looking at here is the question of whether or not this is necessary. Well, in my view, it's certainly not.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thanks, Chair. It's good to see that we're down to one last clause and a few amendments. We look forward to dealing with them expeditiously, but I have one question, to clarify this particular point, for Colonel Gibson.

Are we correct in understanding, Colonel, that when we speak of setting free without authority or allowing the escape of any person under this section 100, that any person in this case could be an enemy, as defined under the act, which is to include an armed mutineer, an armed rebel, armed rioters, pirates, or indeed the member of a terrorist group, if they're considered an enemy, in the context, which would obviously almost certainly be an operational context to which this particular section might apply?

[Col Michael R. Gibson]

Mr. Chair, Mr. Alexander is correct.

“Any person” in the act literally means any person; it's not confined to a member of the armed forces.

[The Chair, Conservative, James Bezan]

Okay.

[Jean-François Larose, NDP, Repentigny, QC]

Thank you, Mr. Chair.

As you know, I was a correctional officer for eight and a half years, during which time we had riots. We were responsible for accused who were suspected of committing heinous acts and for other persons. Escape attempts were made.

I see a danger here. People were responsible for keeping other people in prison, whether they were accused, convicted persons, people serving an intermittent sentence or even escorts. As a result of all kinds of circumstances, those individuals were not always in prison. We were also in the civilian world because it also includes people under house arrest. The danger is that, if a person responsible for supervising another persons can receive a stiffer penalty than the one he or she is supervising, that can have an impact on their relationship.

As you know, a convicted individual has rights. The individual in charge of that person has a responsibility to ensure that that person has what belongs to him or her, but also to supervise that individual so that he or she can serve the sentence. If the individual who has that responsibility loses control—whether as a result of negligence, fatigue or any other reason—and risks receiving a harsher sentence than the person who has escaped, the relationship will change. I have seen this. That relationship will be affected because, then, regardless of whether the rights of the person for which he or she is responsible are respected, he or she will be punished more harshly. This is a serious problem. I do not believe an exception is made for that in the armed forces, regardless of the person for whom that individual is responsible.

There have been sanctions in the past. People were negligent in the correctional sector and were punished. However, those punishments were not more severe than those imposed on the Hell's Angels, for example. That would have made no sense.

There is a serious danger that this will have a negative effect on the relationship between those individuals. In that case, would it be desirable to fire on the individual because the supervisor risks receiving an excessively harsh sentence because the prisoner escapes? The person in a position of responsibility would lose control and risk being fired upon. At what point do we encourage a removal of responsibility from the person who has to ensure control, through either a prohibition from acting or any other measure?

I have seen them all. I have not necessarily seen them all in the armed forces, but I have seen all the types of control and responsibility one can have. A person who already has the courage to supervise someone who is potentially dangerous should never run the risk of receiving a harsher sanction than that of the person he or she is supervising.

I am telling you that you are entering very dangerous territory.

[The Chair, Conservative, James Bezan]

Thank you.

Madam Moore.